In a case where Company A received subsidies for vocational skills development training expenses, including training expenses of KRW 159,422, which were performed by the head of the local employment and labor office during the training period after having conducted vocational skills development training courses, for a period of one year from the date on which the head of the local employment and labor office received the above subsidies pursuant to Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, and ordered Company A to return all subsidies paid to Company A during the suspension period, the case holding that the above disposition was unlawful, since it violates the purport of delegation by the parent law and the principle of excessive prohibition under the Constitution, and thus, it is unlawful.

In a case where Company A received subsidies for vocational skills development training costs of KRW 20,322,710, including training costs of KRW 159,422 for trainees who were treated as attending a training period after applying for subsidies for vocational skills development training expenses after having conducted vocational skills development training courses, the case holding that the Enforcement Decree of the instant case stipulates that the head of a local employment office’s act of receiving subsidies for training costs of KRW 20,322,710, including training costs of KRW 159,422, shall be subject to suspension of payment for one year from the date of receipt of the said subsidies pursuant to Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sep. 18, 2008), and that the disposition of ordering Company A to return subsidies in total paid during the suspension period of payment for the Company A is unlawful by uniformly stipulating that the amount of unjust payment is extremely small, in light of the purport that the provision of this case’s suspension of payment or suspension of payment was unlawful prior to the date.

Article 35(1) of the former Employment Insurance Act (Amended by Act No. 9315, Dec. 31, 2008); Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (Amended by Presidential Decree No. 21015, Sep. 18, 2008);

Daico Co., Ltd. (Attorney Nam-sung, Counsel for defendant-appellant)

The head of the Seoul Regional Employment and Labor Office Seoul East Site

August 23, 2011

1. The Defendant’s disposition of restricting payment of expenses from February 22, 2008 to February 21, 2009 against the Plaintiff and disposition of recovering KRW 280,553,210 based on such disposition shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. According to the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same) on October 2, 2007, the Plaintiff obtained recognition of the vocational skills development training course from the Defendant for the vocational skills development training course (hereinafter referred to as “instant training course”) that the Plaintiff intended to conduct for the Plaintiff’s employees (2007-01): the training method: the training method: total number of 33 hours from October 12, 2007 to November 3, 2007; hereinafter referred to as “instant training course”).

B. From October 12, 2007 to November 3, 2007, the Plaintiff conducted the instant training course with 22 employees belonging to the Plaintiff. On February 12, 2008, the Plaintiff applied for reimbursement of training expenses including the instant training course (hereinafter “training expenses”) to the Defendant on February 22, 2008, and received subsidies from the Defendant for totaling KRW 20,32,710, including KRW 3,575,220 for training expenses for the instant training course, and among them, KRW 159,422 for the Nonparty who is the trainee of the instant training course included KRW 159,422 for the training expenses.

C. As a result of a request from the Board of Audit and Inspection and the Ministry of Employment and Labor for an investigation into whether a trainee who has diverse overseas (which is accompanied by the list) for vocational skills development training period, the Defendant confirmed that even though the non-party, who is an employee of the Plaintiff, left Korea from October 30, 2007 to November 10, 207, he was treated as being present at the meeting on November 2, 2007 and November 3, 2007, which is the execution date of the instant training course, even though the non-party, who was an employee of the Plaintiff, left Korea from abroad.

D. Accordingly, on February 21, 2011, the Defendant rendered each of the following dispositions against the Plaintiff (hereinafter “instant disposition”).

Article 25(1)3 and (2) of the former Act on the Development of Workplace Skills of Workers (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009; hereinafter the same shall apply), Article 9(3) [Attachment 2] of the former Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 2], Article 25(1)2 and (5) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009; hereinafter the same shall apply], Article 25(2)5 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers, Article 25(3) [Attachment 2] of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers, Article 25(1)2 and (5) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers, Article 25(2) [Attachment 2]

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4, Gap evidence 2, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 35(2) proviso of the former Employment Insurance Act provides that Article 16(5)1 and Article 25(4)1 of the former Act on the Development of Workplace Skills shall apply mutatis mutandis to those who conduct workplace skill development training under Article 2 subparag. 1 of the former Act on the Development of Workplace Skills of Workers. Since the instant training course is conducted by a business owner under the former Act on the Development of Workplace Skills of Workers, Article 25(4)1 of the former Act on the Development of Workplace Skills of Workers shall apply mutatis mutandis pursuant to the above provision. As a result, Article 25(4)1 of the former Act on the Development of Workplace Skills of Workers shall apply mutatis mutandis to those who conduct workplace skill development training under Article 2 subparag. 1 of the former Act on the Development of Workplace Skills of Workers. As a result, those subject to the revocation of recognition or restriction on recognition shall be limited to the instant training course, and the subsidy to be returned shall not be subject to a disposition to order the refund of all subsidies, subsidies, or training expenses (hereinafter referred to as “instant workplace skill development support”).

2) Even if Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act can be the basis for the instant disposition, it would be invalid in light of the purport of delegation under Article 35(1) of the former Employment Insurance Act, where Article 56(2) of the Enforcement Decree of the same Act provides that an order to return all subsidies, etc. irrelevant to any false or other unlawful means, which was paid during the period of restriction on payment for one year is excessively and unreasonably harsh and unreasonable.

B. Relevant statutes

[Attachment] The entry is as follows.

C. Determination

1) Determination on the first argument

A) Article 35(1) of the former Employment Insurance Act provides that the Minister of Labor may order a person who has received or intends to receive support from a person who has received or has received support for employment security and vocational skills development training under this Chapter ( Chapter III), by fraud or other improper means, to restrict such support or return the subsidy already received, as prescribed by Presidential Decree. Article 35(2) of the same Act provides that where the Minister of Labor orders a return pursuant to paragraph (1) of the same Article, he/she may additionally collect an amount not exceeding the amount that has been received by fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Labor. Under the proviso, Article 16(5)1 of the former Act on the Development of Workplace Skills of Workers (Article 2 subparag. 1 of the same Act where the State or a local government entrusts workplace skill development training), and Article 25(4)1 of the same Act provides that Article 35(1) of the former Employment Insurance Act shall not apply mutatis mutandis to a person who has received or intends to receive the subsidy by fraud or other improper means.

Meanwhile, Article 25 (4) of the former Act on the Development of Workplace Skills of Workers may order a person whose recognition has been revoked pursuant to the provisions of paragraph (1) or a business owner, workers, business owners' organizations, etc., or workplace skill development organizations subject to restrictions on taking courses or providing loans pursuant to the provisions of paragraph (3) to return all or part of the amount already provided or loaned. In such a case, the amount of subsidies already provided in accordance with the standards prescribed by the Ordinance of the Ministry of Labor may be additionally collected according to the following classification, as to the amount of subsidies already provided by fraud or other improper means, and the amount of additional collection may be made against a person whose recognition has been revoked pursuant to the provisions of subparagraph 1 by fraud or other improper means:

B) Comprehensively considering the above provisions and the provisions of the former Employment Insurance Act, where an employer has obtained training costs (in such cases, training costs shall be paid from the Employment Insurance Fund created with employment insurance premiums, etc. under the former Employment Insurance Act) by false or other unlawful means in conducting workplace skill development training courses with approval from the Minister of Labor pursuant to the former Act on the Development of Workplace Skills of Workers, along with various sanctions (e.g., cancellation of recognition, restriction on recognition, restriction on subsidies or loans, order for return of illegally received amounts, and order for return of additional collection) prescribed in Article 25 of the former Act on the Development of Workplace Skills of Workers, Article 35(1) of the former Employment Insurance Act and Article 56(1) and (2) of the former Enforcement Decree of the Employment Insurance Act, and Article 56(1) and (3) of the former Enforcement Decree of the Employment Insurance Act shall not apply mutatis mutandis to those who have received or intend to receive training costs by fraudulent or other unlawful means, and Article 45(1)5(2) of the former Act on the Development of Workplace Skills of Workers shall not apply mutatis mutandis to those who have received or were subject to the same amount.

C) Therefore, since the grounds for the instant disposition are reasonable, the Plaintiff’s assertion on a different premise is without merit.

2) Determination on the second argument

A) Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”) provide that a disposition ordering the establishment of a system or literal term of the provision of the Employment Insurance Act and the return of subsidies, etc. paid during the period of restriction on the payment thereof constitutes a binding act. However, there is a question as to whether the enforcement Decree of this case, which provides that a person who has received or attempted to receive vocational skills development training expenses, etc. by false or other unlawful means (hereinafter “unlawful recipients”) under the delegation of Article 35(1) of the former Employment Insurance Act, shall be obliged to pay subsidies, etc. for one year and shall be ordered to return subsidies, etc. paid during the period of restriction on payment, is not contrary to the delegation of the mother law or the constitutional principle

B) The instant enforcement decree aims to prevent unlawful acts in relation to the payment of subsidies, etc., to prevent unemployment, to promote employment, and to develop and improve workers’ vocational skills through the restriction on payment of subsidies, etc. for one year to illegal recipients and orders to return subsidies, etc. during the period of restriction on payment, and ultimately, to promote the prevention of unemployment, to promote employment, and to promote the development and improvement of workers’ vocational skills. In addition, the legislative purpose of the instant enforcement decree itself is justifiable in light of the fact that subsidies, etc. were made with limited public resources, which are employment insurance funds under the Employment Insurance Act. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through punitive sanctions stipulated in the enforcement decree of the instant case, and accordingly,

However, in light of the various circumstances seen below, the content of the enforcement decree of this case is a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of “minimum damage” or “a balance of legal interests” and thus violates the delegation purport of the parent law or the principle of excessive prohibition under the Constitution.

① Article 35(2) of the former Employment Insurance Act provides that, in addition to ordering the return of subsidies, etc. already paid pursuant to Article 35(1) of the same Act, an amount not exceeding the amount equivalent to the amount paid by fraud or other improper means may be collected as punitive sanctions. Accordingly, Article 25(4)1 of the former Act on the Development of Workplace Skills of Workers, Article 22-2 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers, and Article 9(1) of the former Enforcement Rule of the Act on the Development of Workplace Skills of Workers stipulate that additional collection shall be made based on the number of times for which expenses were applied by fraud or other improper means during the past five years. Meanwhile, the provision of the Enforcement Decree of this case provides that the amount of subsidies, etc. shall be limited to one year from the aforementioned additional collection disposition to the illegal recipient, regardless of whether the subsidies were paid by fraud or other improper means, and that the amount of subsidies, etc. to be returned to the Plaintiff is clearly more than the aforementioned provision of the grounds for additional collection disposition, and thus, it can be uniformly prescribed the same within one year and scope.

(2) In addition, the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which the application for the payment was made, but rather the date on which the application for the payment was made. Thus, if an illegal recipient becomes aware of the fact that the payment of subsidies would be restricted for one year, he/she may flexibly conduct vocational skills development projects during the restriction period and reduce losses, and it cannot be deemed unfair to operate workplace skill development projects. Thus, even if the provision of the Enforcement Decree of this case provides for the restriction on payment as a binding act, it cannot be deemed that the non-beneficiary failed to comply with the principle of “minimum damage” by prescribing the date on which the application for the restriction on payment was made. In addition, by prescribing the initial date of the restriction on payment as the date on payment was received or applied for the payment not the date on which the application was made, it may result in unreasonable difference between the number of eligible recipients of subsidies, etc. and the timing of the application for the subsidy, etc. and the amount of the subsidy to be returned.

③ In addition, the instant enforcement decree also provides for a restriction on payment and an order to return subsidies paid during the period of restriction on payment for one year from the date on which the applicant received subsidies, etc. or applied for payment, and does not impose any special restrictions on the period during which the said sanctions may be imposed, thereby creating a problem that the status of an illegal recipient is

④ Meanwhile, even if the scope of delegation under the former Employment Insurance Act was not explicitly specified by the Presidential Decree, the scope or limitation of inherent delegation by the legislative purport, purpose, etc. of Article 35(1) of the same Act can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997); and in light of the legislative purpose of the above provision; and the legislative purpose of the above provision; the principle of excessive prohibition under the Constitution, the delegation of Article 35(1) of the former Employment Insurance Act goes against the legislative purpose of the above provision, which provides that the standard should be reasonably subdivided and defined depending on the type of misconduct, its degree, motive, and consequence, etc., and that it would be possible to uniformly add the provision to increase or decrease the scope of delegation within a certain scope to the administrative agency under its jurisdiction, regardless of the legislative intent of the above provision, and thus, it accords with the legislative purpose of the Act.

⑤ Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010 provides that restrictions on the payment of subsidies, etc. for one year to illegal recipients shall be imposed on “if three years have elapsed from the date of receipt of subsidies or incentives, or if the amount received or intended to receive subsidies by fraud or other improper means is less than three million won and illegal acts have been discovered for the first time, restrictions on the payment for one year shall not apply.” Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22603, Dec. 31, 2010; “The provision of Article 35(1) provides that “Any one of the subsidies prescribed in paragraph (1) of the Employment Insurance Act shall be mitigated by up to one-year period from the date of return or restriction under paragraph (1) shall be considered as a result of the amendment of the Enforcement Decree of the Employment Insurance Act; however, the provision may be considered as a result of the amendment of the same Presidential Decree.”

(6) Therefore, in addition to Article 35(2) of the former Employment Insurance Act, which can impose an additional collection disposition against an illegal recipient as a disciplinary measure, the legislative purpose of this case can be more efficiently achieved by prescribing the provisions of the Enforcement Decree of this case in duplicate, but the provisions of the Enforcement Decree of this case stipulate the restriction on payment and the order to return subsidies, etc. paid during the period of restriction on payment for one year, without reasonably subdividing the standards according to the type of offense committed by the illegal recipient under the provisions of the Enforcement Decree of this case.

C) Sub-determination

The instant disposition based on the delegation purport of the parent law and the principle of excessive prohibition under the Constitution, which is null and void, is unlawful.

3. Conclusion

The plaintiff's claim is justified and accepted.

[Attachment] Relevant Statutes: omitted

Judges Cho Il-young (Presiding Judge) Kim Jong-san Kim Tae